In a major victory for Federal prosecutors, the Supreme Court ruled today that the Government can both prosecute someone for a crime and seize his property through civil forfeiture without violating the constitutional bar against double jeopardy.

The double-barreled prosecution and forfeiture strategy, a cornerstone of the Government's approach to narcotics crimes, had been meeting increasing resistance in the lower courts. Two Federal appeals courts, in rulings the Court overturned in a single decision today, had found the approach a violation of the Fifth Amendment, which the Court has interpreted as prohibiting multiple punishments for the same offense.

But ordinary civil forfeiture is not a punishment, Chief Justice William H. Rehnquist said in his majority opinion today. He said the Federal forfeiture statutes the Government uses in drug cases, "while perhaps having certain punitive aspects, serve important nonpunitive goals," like encouraging property owners to make sure their property is not used for illegal purposes.

All nine Justices agreed that one of the forfeitures at issue -- that of hundreds of thousands of dollars in cash, proceeds of a major methamphetamine and money-laundering operation -- did not amount to double jeopardy. As proceeds of illegal activity, the money was not property that the two defendants had "any right to retain," Justice John Paul Stevens said in a separate opinion.

But in the second case, in which a Michigan man forfeited the value of his house because he had processed marijuana there, Justice Stevens cast a lone dissenting vote. He said the forfeiture was plainly punitive, because "there is no evidence that the house had been purchased with the proceeds of unlawful activity, and the house itself was surely not contraband."

Justice Stevens said that under the majority's theory, Congress during Prohibition could have "authorized the forfeiture of every home in which alcoholic beverages were consumed." He accused the majority of repudiating a series of recent Court decisions that limited the Government's discretion in using civil forfeiture in various contexts.

Those decisions, including one only three years ago that found civil forfeiture to be a form of punishment for purposes of applying the Eighth Amendment's protection against "excessive fines," were an inconvenience for the majority, but Chief Justice Rehnquist dispensed with them quickly.

Referring to Austin v. United States, the 1993 case holding that a forfeiture could be an excessive fine, the Chief Justice said the Court had never treated the excessive-fines prohibition of the Eighth Amendment "as parallel to, or even related to, the Double Jeopardy Clause of the Fifth Amendment."

"We decline to import the analysis of Austin into our double jeopardy jurisprudence," he added.

In his dissenting opinion, Justice Stevens objected that the Court "today stands Austin on its head." He said it was "difficult to imagine why the Framers of the two amendments would have required a particular sanction not to be excessive, but would have allowed it to be imposed multiple times for the same offense."

The Chief Justice dealt in similar fashion with two of the Court's other recent forfeiture decisions, saying the lower courts had misunderstood them as creating a "radical jurisprudential shift." Instead, he said, nothing in those rulings "purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause."

In his opinion, United States v. Ursery, No. 95-345, Chief Justice Rehnquist left open the possibility that a civil forfeiture might be so clearly punitive as to be "equivalent to a criminal proceeding" and therefore subject to the double jeopardy clause. But his analysis of the two laws the Government uses in narcotics cases made it highly unlikely that forfeitures under those statutes would meet that test.

One of the laws, known as Section 881, provides for the forfeiture of "all real property" that is "used or intended to be used, in any manner or part, to commit, or to facilitate the commission of," a Federal drug offense. The Government relied on this section in the forfeiture of the rural Michigan house where Guy Jerome Ursery was processing marijuana.

The second law, known as Section 981, provides for the forfeiture of all "things of value" used or intended for use in a drug transaction, as well as "all proceeds traceable to such an exchange." The Government used this section in obtaining forfeiture of the cash and property of Charles Arlt and James Wren, who had been convicted of running a major methamphetamine ring in California.

In Mr. Ursery's case, the forfeiture preceded the criminal conviction, and it was his conviction that the United States Court of Appeals for the Sixth Circuit, in Cincinnati, overturned as a second punishment for a single offense.

In the second case, Mr. Arlt and Mr. Wren were convicted before the forfeiture proceeding, and it was the forfeiture that the United States Court of Appeals for the Ninth Circuit, in San Francisco, overturned as a double jeopardy violation.

The two appellate decisions had imperiled hundreds of convictions or forfeitures, whichever came second in any particular case.

Justices Antonin Scalia and Clarence Thomas concurred on the separate basis that, in their view, the protection against double jeopardy applies only to successive prosecutions for the same offense, and not to punishments. The Court, however, has long interpreted the text of the Fifth Amendment, which provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb," as applying to multiple punishments as well as multiple prosecutions.

Civil forfeiture has been an attractive approach for the Government because it does not require the high standard of proof needed for criminal convictions and, in fact, can apply even if there has been no criminal conviction.

An error has occurred. Please try again later.

You are already subscribed to this email.

As the Court began what may be the final week of its 1995-96 term, there were also these other actions:

Prisoner Suits

An 8-to-1 decision overturned a broad Federal court decree governing access by inmates in the Arizona prison system to law libraries and assistance in doing legal research.

The majority opinion, by Justice Scalia, set strict new standards for prisoners to meet in suits alleging inadequate access to courts. Prisoners must not only show a theoretical injury from inadequate access to legal materials, Justice Scalia said, but also show that "a nonfrivolous legal claim had been frustrated or was being impeded."

Justice Stevens was again the lone dissenter. While he agreed that the lower court order was too broad, he said the Court was setting an unnecessarily strict standard.

The eight other Justices all agreed that an injunction issued in 1994 by the Federal District Court in Phoenix was "inordinately -- indeed, wildly -- intrusive," in Justice Scalia's words. In fact, the Court had taken the highly unusual step of granting Arizona's request for a stay of the district court's order even before the Ninth Circuit ruled on the appeal.

The appeals court upheld the injunction, which required the prison system to provide particular sets of reference books, librarians with special training, access to the library by prisoners who were otherwise "locked down" in their cells and particular hours of operation, among other requirements.

But while agreeing with Justice Scalia's general conclusions today, three members of the majority -- Justices Souter, Ginsburg and Breyer -- dissented from much of his specific analysis. In particular, the three Justices objected to the requirement that an inmate must be seeking to litigate a meritorious lawsuit in order to have legal standing to object to the absence of legal research materials.

"It is the existence of an underlying grievance, not its ultimate legal merit, that gives a prisoner a concrete interest in the litigation," Justice Souter said in a separate opinion that Justices Ginsburg and Breyer also signed.

At the heart of this case, Lewis v. Casey, No. 94-1511, was a 1977 Supreme Court decision that required prison officials to give inmates "adequate law libraries or adequate assistance from persons trained in the law" as part of the "fundamental constitutional right of access to the courts." The question was how broadly this precedent should be interpreted, or even whether it remained valid in the eyes of the current Justices.

Justice Thomas wrote a separate 30-page concurring opinion arguing in part that the 1977 decision, Bounds v. Smith, was at odds with the Constitution's text and with historical practice and should therefore be overruled. No other Justice joined him in that approach.

The majority did, however, limit the precedent in some respects, in a part of the opinion that Justices Souter, Ginsburg and Breyer did not sign. Justice Scalia said the right of access to legal materials applied only to the filing of the inmate's initial complaint, and did not extend to pretrial discovery or to carrying the litigation forward.

"To demand the conferral of such legal capabilities upon a mostly uneducated and indeed largely illiterate prison population is effectively to demand permanent provision of counsel, which we do not believe the Constitution requires," Justice Scalia said.

He also said the precedent was limited to providing legal materials that inmates need to challenge their convictions, sentences or conditions of confinement. "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration," Justice Scalia said, adding that Bounds v. Smith "does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims."

Elizabeth Alexander, director of the American Civil Liberties Union's National Prison Project, who argued the case for the Arizona prisoners, said the Court's ruling would make it "more difficult to translate prisoners' theoretical constitutional rights into actual constitutional rights."

Jury-Trial Right

The Court ruled, 5 to 4, that defendants who are prosecuted in a single case for more than one petty offense did not have a constitutional right to a jury trial.

The Court has long held that the Sixth Amendment right to trial by jury applies only to serious offenses, defined as those carrying a potential sentence of more than six months. The question in this case, Lewis v. United States, No. 95-6465, was whether the right applies when there is more than one petty charge, with a potential sentence of more than six months.

The case was an appeal by a postal worker who was charged with two counts of obstructing the mail -- actually, stealing mail -- each of which carried a sentence of six months. His request for a jury trial was denied by the Federal District Court in Brooklyn and by the United States Court of Appeals for the Second Circuit, in Manhattan. He eventually received three years' probation without jail time.

Writing for the majority today, Justice O'Connor said the determination of whether an offense was petty or serious was up to the legislature, as expressed by the maximum sentence. That there is more than one charge "does not revise the legislative judgment as to the gravity of that particular offense, nor does it transform the petty offense into a serious one," she said.

Chief Justice Rehnquist and Justices Scalia, Souter and Thomas joined the majority opinion. Justices Kennedy, Breyer, Stevens and Ginsburg dissented, with Justice Kennedy calling the decision "one of the most serious incursions on the right to jury trial in the Court's history." He said the decision was a threat to "millions of persons in agriculture, manufacturing and trade who must comply with minute administrative regulations, many of them carrying a jail term of six months or less."